Jackson ex dem. Ruggles v. Martin

Spencer, Ch. J. title of the plaintiff to recover, depends principally upon that clause in the will of Henry M‘Neely, in which he devises 118 acres to his son Robert, to be taken off the southerly end of his homestead farm. The devise of this portion of his estate, contains no words of inheritance or perpetuity; after describing the 118 acres, the will proceeds, “he complying -with the following injunctions, that is, he, my said son Robert, shall allow to his said mother any room in my said dwelling house that she may choose to live in, and keeping for her one cow, summer and winter, and to furnish her with sufficient quantity of fire wood and grain of all sorts, for her comfortable support.’’ In the next clause of the will there is this direction, “ but in case my said son Robert neglects or refuses to provide for his mother as aforesaid, or in case she should not choose to live with him, if he murries a wife, in that case, 1 order that [35] fie build ker(t house on. that part of my homesteadfarmthatis. hereafter devised to my fourth son, James MiMeely, and to provide for her as aforesaid, or, otherwise, to pay herfourteen pounds yearly, and every year, during her natural life.*’ By a previous devise to the testator’s wife, he had given her any room in his house that she may choose; “ also, one cow, and fodder and pasture for both summer and winter, from his homestead farm, for, and during her life, and of the profits and produce of his said farm, such proportion of either as to render her a comfortable support through life. These are all the devises bearing on the point argued; and the question is, whether Robert M'Neely took an estate for life only, in 118 acres devised to him, or a fee ? All the eases on the question were ably examined by the present Chancellor, in Jackson v. Bull, (10 Johns. Rep. 151.) He there said, that the distinction is, that where the charge is upon the estate, and there are no words of limitation;, the devisee takes only an estate for life; but where the charge; is on the person of the devisee, in respect of the estate in his hands, he takes a fee, on the principle that he might otherwise be a loser. When the charge is on the person, he said, the devisee takes the estate on condition of paying” the charge, and if he die in the life-time of the testator, the charge ceases; or if he refuse to accept and perform, the' devise is void, and the heir may enter; and it was well observed, on that occasion, that the cases on this point are not altogether, consistent. Where the devise was, “ he paying, &;c.?5 and t: so that she pay, &c.” there are several cases, and particularly Colyer’s case, (6 Co. Rep. 16.) which has always been regarded as high authority, which decide, that these expressions create a charge on the person, and convey a fee. So, where the words were, “ all the rest of my goods and lands I give to A:, to discharge all things charged in my willand, in another case, “ my legacies and funeral expenses being thereout paidin these cases the devisee was held to take a fee. It will be observed that, in this case, the testator devised expressly to his wife, certain things which he enjoined on Robert to provide for her; the choice of a room, keeping a, cow in summer and winter, and the profits and produce of [36] his farm, for her comfortable support. The furnishing the gra¡n js not? eo nomine, mentioned in the devise to her but there is no devise to her of fire wood, nor is there any provision for building her á house, in the events specified in the will, except the injunction upon Robert. I am satisfied, that the direction with respect to the firewood, and building a house for his mother, was a personal charge upon Robert, in respect to the land given to him, arid not upon the land in his hands and that had he died in the life-time of the testator, or had he refused to accept the devise, the testator’s widow could not have enforced the performance of these specific duties, as against the heirs of the land devised. The devise to Robert is a conditional one, “ he complying with the following injunctions,’’ &c., and the cases to which I have alluded, appear to me to be precisely in point. Again, the building the house, though a contingent thing, was a direct charge upon the person of Robert, and the devise to him depended on his performing that injunction. ■ I do not mean to say, that the devise to the wife of so much of the profits and the produce of the farm, as will render her a comfortable support, means the same thing as the charge upon Robert, to furnish her a sufficient quantity of grain of all sorts, for her comfortable support; for the farm may not have yielded grain enough, or it might have been destroyed, without Robert's fault; and yet he was bound to provide it. There is great force in the argument, that this, also, was a personal charge in respect to the land devised. , . ; I do not know that the case can be further illustrated. The decsions on the construction of wills, when applicable, and when uniform, become a rule of property; and it ig the duty of the Court to compare the adjudged cases with, and apply them to, the case to be decided, without indulging themselves in speculations of their own, on the rationality of the distinctions taken by those who have preceded them. The lessor having deduced a title undér Robert M‘Neely, and the Court being of opinion that he took a fee in the [37] 118 acres devised to him, the plaintiff is entitled to judgment according to the stipulation in the case. Judgment for the plaintiff.